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WIPO/IP/BIS/GE/03/11: Protection of New Variety of Plants (Related)

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WIPO/IP/BIS/GE/03/11: Protection of New Variety of Plants (Related) UPOV’s mission is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society . INTRODUCTION TO PLAN T VARIETY PROTE CTION UNDER THE UPOV CONVE NTION 1. The International Union for the Protection of New Varieties of Plants, known as “UPOV,” 1 is an intergovernmental organization with legal personality and which has its headquarters in Geneva, Switzerland. UPOV was established by the International Convention for the Protection of New Varieties of Plants (hereinafter referred to as “the UPOV Convention”), which was adopted in Paris in 1961. This was the point at which there was recognition of the intellectual property rights of plant breeders in their varieties on an international basis. 2. The UPOV Convention was revised in Geneva in 1972, 1978 and 1991. On August 31, 2003, there were 53 members of the Union; 2 25 States are bound by the 1991 Act an d 26 States are bound by the 1978 Act and two States are still bound by the 1961 Convention and 1972 Act. Their dates of joining UPOV and the Acts of the Convention by which they are bound are given in Annex I. 3 3. Plant variety protection, als o called a “plant breeder’s right,” is a form of intellectual property right granted to the breeder of a new plant variety in relation to certain acts concerning the exploitation of the protected variety which require the prior authorization of the breeder . As in the case of patents, trademarks and industrial designs, prior examination and granting by the relevant authority is required to establish the breeder’s right. 4. This “Introduction to Plant Variety Protection under the UPOV Convention” contains three parts, the first part consists of a general overview of UPOV and the need for protection of plant varieties; the second part explains the key features of the latest Act of the UPOV Convention and, finally, the last part gives some informati on on the organizational structure, membership and recent developments concerning UPOV. I. GENERAL OVERVIEW 5. The UPOV Convention provides a sui generis form of intellectual property protection which has been specifically adapted for the process of plant breeding and has been developed with the aim of encouraging breeders to develop new varieties of plants. In order to fully 1 The acronym UPOV is derived from the French name of the organization, which is “ Union Internationale pour la Protection des Obtentions Végétales.” 2 The term “members of the Union” includes member States bound by the 1961, 1978 Acts and Contracting Parties bound by the 1991 Act. 3 Membership of UPOV can also be found at: http://www.upov.int/en/about/members/index.htm c: \winnt \apsdoc \nettemp \676 \$asqmodel -intro to pvp (august 2003)updated.doc Introduction to Plant Variety Protection page 2 appreciate the need for protection, it is useful to understand something about the nature of plant breeding. 6. In early history, and as part of the process of establishing fixed settlements and becoming a farmer, man selected and kept seed or plants of those species that offered a secure food source. By the end of the eighteenth century, when systematic plant breeding by selection began, the plants grown by farmers were the result of several thousands of years of partly conscious, partly unconscious selection. The art of plant breeding resulted from the realization by innovative farmers in the eighteenth centu ry that considerable further progress was possible by systematic selection. In the twentieth century, the rediscovery of Mendel’s laws of heredity contributed to the establishment of plant breeding on a scientific basis. 7. The essence of plant breeding is the discovery or creation of genetic variation in a plant species and the selection from within that variation of plants with desirable traits that can be inherited in a stable fashion. The plant breeders’ final selections of superior plants will form the basis of one or more plant varieties. Plant breeders use all available technology both to create genetic variation and to select from within that variation. 8. Different types of plant variety have been developed, depending upon t he physiology of the plants of each species and the ways in which the plants of the species can be reproduced. The simple objective of a breeder is to produce a variety which is an improvement on the plants used as the starting point. However, this is a difficult challenge. Many useful characteristics, such as yield and quality, are controlled by the interaction of very large numbers of genes, about most of which little is known. Very large numbers of plants must be examined by the plant breeder over man y different seasons and under different growing conditions. Once a desirable plant has been identified, it is still necessary to fix its genetic structure in order that it can be multiplied into a variety, the individual plants of which perform in the des ired way. Thus, the breeding of a plant variety takes place over many years. 9. Large -scale breeding work calls for significant annual investment in land, specialized equipment (including, for example, greenhouses, growth chambers and laboratories), and skilled scientific manpower, which must continue over the many years which it takes to find and develop an improved plant variety. Not all plant breeders are successful and, even where successful, changes in market requirements may eliminate the possibility of a return on investment, so there is also risk involved. However, the benefits arising from the combinations of increased output and improved quality made possible by plant breeding are such that society has good reasons to encourage invest ment and risk -taking in this field. 10. New varieties of plants which produce improved yields, higher quality or provide better resistance to plant pests and diseases are a key element and a most cost -effective factor in increasing productivity a nd product quality in agriculture, horticulture and forestry, whilst minimizing the pressure on the natural environment. Many other modern technologies of plant production need to be combined with high -performing varieties in order to deploy their full po tential. The tremendous progress in agricultural productivity in various parts of the world is largely based on improved varieties. 11. World population continues to grow, and it is necessary to find ways of increasing output through higher yie lds and less wastage, thereby minimizing the use of land and other resources, all of which are becoming more scarce. But plant breeding has wider economic and environmental benefits than just increasing food production. The development of new improved Introduction to Plant Variety Protection page 3 va rieties with, for example, higher quality increases the value and marketability of crops in the global market of the twenty -first century. In addition, breeding programs for ornamental plants can be of substantial economic importance for an exporting coun try. The breeding and exploitation of new varieties is a decisive factor in improving rural income and overall economic development. Furthermore, the development of breeding programs for certain species can remove the threat to the survival of the specie s in the wild. 12. Breeding new varieties of plants requires a substantial investment, in terms of skill, labor, material and economic resources, and may take many years (10 to 15 years in the case of many plant species) ; however, a new variety, once released, could in many cases be readily reproduced by others so as to deprive its breeder of the opportunity to benefit adequately from the investment made. Sustained breeding efforts are only possible if there is a chance to reward investment. It is, therefore, important to provide an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society. II. KEY FEATURES OF THE UPOV CONVENTION 13. The members of the Union have undertaken to grant plant breeders’ rights in respect of new plant varieties in accordance with the principles established in the UPOV Convention and thus on an internationally harmonized basis. 14. The basic principles of the UP OV Convention, as they were introduced in the 1961 and 1978 Acts, had been seen to work well in practice. These same principles are retained in the 1991 Act. The 1991 revision was, in effect, the fine -tuning of the Convention to equip it for the twenty -first century. 15. If the UPOV Convention was working well, why was it necessary to revise it in 1991? When the Convention was adopted in 1961, it created certain concepts that were new to intellectual property. By 1991, some thirty years of experience had been gained in the application of these concepts, and members of the Union were aware of some improvements that could be made. The discovery of the structure of DNA was announced in 1953. During the period 1961 to 1991, consequential scientif ic discoveries and technological developments took place, which had profound implications for plant improvement and also for plant variety protection. The changes made in 1991 were to improve the system on the basis of experience or to respond to scientif ic and technological progress. 16. The UPOV Convention 4 established for members of the Union a legal framework with the following key features: • common agreement on essential notions: variety and breeder; • genera and species to be protected; 4 Unless otherwise indicated, reference to the
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